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Toll v. Sills Cummis & Gross, P.C.

Superior Court of New Jersey, Appellate Division

July 2, 2013

JAMES D. TOLL, Plaintiff-Appellant,
SILLS CUMMIS & GROSS, P.C., Defendant-Respondent.


Submitted March 5, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8741-07.

McMoran, O'Connor & Bramley, P.C., attorneys for appellant (Bruce P. McMoran, of counsel and on the briefs; Michael F. O'Connor, on the briefs).

Epstein Becker & Green, P.C., attorneys for respondent (Carmine A. Iannaccone, of counsel and on the briefs; Michael D. Thompson, on the briefs).

Before Judges Fisher, Alvarez and St. John.


Plaintiff James D. Toll appeals from orders of the Law Division granting: (1) summary judgment to defendant, Sills Cummis & Gross, P.C., on plaintiff's age discrimination claim and defendant's counterclaim for conversion of a referral fee; and (2) a directed verdict to defendant on his claim of retaliation. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.


The record discloses the following facts and procedural history.

Plaintiff, a fifty-two year old attorney, had been employed by defendant for twenty-two years when his employment was terminated. In early 2006, defendant's executive committee desired to reduce the number of the firm's members.[1] A three person committee was established to identify members for termination or reduction in status. After several meetings, in which the committee reviewed numerous members for potential termination, they identified plaintiff, as well as six other persons, whose ages were sixty-one, sixty-two, sixty-three, fifty-five, fifty, and forty-four, respectively.

The committee, after consulting with various members on the management and executive committees, informally evaluated each of the members they had identified for possible termination in the categories of "client related skills, future of practice area, legal skills (ability, efficiency, ability to juggle), marketing to new clients, judgment, and standing in the bar."

In the category of "client related skills, " plaintiff's rating was "C, mixed at best." According to a committee member, that evaluation was made before the firm lost a substantial client as a result of the client's impression of plaintiff's inadequate representation. In the category of future of practice area, plaintiff was rated at "F-" because the firm was "looking to get out of" two of his practice areas, personal injury defense, outside of products liability, and personal injury work. With respect to plaintiff's legal skills, the committee looked at his entire career, including his profitability. He was evaluated at "below average" in that category because he was not sought out by originating partners to do work on matters. It was also noted that plaintiff was not present in the office after 6:00 p.m., which plaintiff contested. Regarding the category of marketing to new clients, plaintiff was rated an "F" because he was not in a practice area that the firm sought to attract. The committee was unable to rate plaintiff in the judgment category. Plaintiff received a "D-" in the category of standing in the bar, because he did not have any high reputational value in the New Jersey legal community.

After conducting these evaluations, the committee concluded that four members, including plaintiff, should be terminated, two members should be demoted to senior counsel, and one member should retain status. Sometime in the spring of 2006, the findings and recommendations were presented to the executive committee. The executive and management committees ultimately agreed with the findings and recommendations, and three members were immediately terminated, two members were demoted, and one member retained status. On September 28, 2006, defendant's deputy managing partner informed plaintiff that the firm would no longer engage in personal injury work and plaintiff should begin looking for a new position. Plaintiff contended he was never given a date certain. Following this, plaintiff's bonus was reduced but his salary remained the same. Defendant also permitted younger associates to assume some of plaintiff's responsibilities. In December 2006, plaintiff's counsel wrote defendant claiming the firm had discriminated against plaintiff because of his age. In September 2007, defendant formally terminated plaintiff.

Additional facts underlie defendant's counterclaim. In 2004, plaintiff represented a client in a wrongful death lawsuit on a contingent fee basis. Defendant directed plaintiff to find substitute counsel for the client because the firm no longer wanted to remain engaged in the matter. Substitute counsel agreed to take the case and pay a referral fee. By e-mail dated May 8, 2007, defendant asked plaintiff about the referral fee, to which plaintiff replied, "[t]he firm will be getting the 1/3 referral fee from . . . [substitute counsel] assuming there is a recovery."

In 2008, after his termination, plaintiff received a check payable to him, in the amount of $92, 497.65, representing the referral fee. Plaintiff retained the monies. Defendant first became aware that the referral fee case settled in October 2009. It then sought return of the monies, but plaintiff refused.

In 2008, plaintiff filed a complaint claiming age discrimination. The motion judge[2] granted summary judgment on this claim to the defendant. The judge found that although plaintiff satisfied his prima facie burden of proof, defendant articulated a legitimate, non-discriminatory reason for discharge, and plaintiff did not show that age was a determinative factor in the termination decision. On reconsideration, the judge clarified that he dismissed the age discrimination claim because plaintiff failed to proffer sufficient evidence of pretext.

Defendant filed a counterclaim for conversion of the referral fee. The motion judge found that plaintiff "committed conversion by [intentionally] exercising control over the referral fee." The judge further explained that plaintiff had not set forth "any legal theory" that the referral fee belonged to him.

Plaintiff's complaint also asserted a retaliatory discharge claim. At the close of evidence, the trial judge involuntarily dismissed the retaliatory discharge claim.


Plaintiff makes three arguments on appeal. First, that the court erred in granting summary judgment to defendant on his age discrimination claim. Second, that the court erred in granting a directed verdict to defendant on his retaliation claim. Third, that the court erred by ordering him to return the referral fee to defendant.

Certain principles guide our consideration of the issues on appeal. In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortg. Corp. v. Chaudhri, 400 N.J.Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). See also R. 4:46-2(c) (entitling moving party to judgment as a matter of law "if the pleadings . . .show that there is no genuine issue as to any material fact challenged").

We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J.Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on the issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Motions for a directed verdict, R. 4:40-1, are governed by the following evidential standard: "'[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). We apply the same standard as the trial court. Boyle v. Ford Motor Co., 399 N.J.Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008).

A. Age Discrimination Claim

Plaintiff claimed age discrimination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, in connection with his termination. The LAD prohibits an employer from discriminating against an employee based on age. N.J.S.A. 10:5-4 and 10:5-12. N.J.S.A. 10:5-12(a) provides, in pertinent part:

It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:
a. For an employer, because of the . . . age, . . . of any individual, . . . to refuse to . . . employ or to . . . discharge[, ] . . . unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment[.]

Where, as here, there is no direct evidence of unlawful discrimination, plaintiff must first establish a prima facie case of discrimination. Henry v. Dep't of Human Servs., 204 N.J. 320, 330 (2010). "There is no single prima facie case that applies to all employment discrimination claims. Instead, the elements of the prima facie case vary depending upon the particular cause of action." Victor v. State, 203 N.J. 383, 408 (2010).

To establish a cause of action under the LAD for discriminatory discharge, the plaintiff must show: "(1) that [he or she] is in a protected class; (2) that [he or she] was otherwise qualified and performing the essential functions of the job; (3) that [he or she] was terminated; and (4) that the employer thereafter sought similarly qualified individuals for that job." Id. at 409 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596-97 (1988)). Since plaintiff is alleging age discrimination, he is required to prove, as the fourth prong of his prima facie case, that he was "replaced 'by a candidate sufficiently younger to permit an inference of age discrimination.'" Young v. Hobart W. Grp., 385 N.J.Super. 448, 458 (App. Div. 2005) (quoting Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210-13 (1999)).

Once a plaintiff sufficiently demonstrates a prima facie case of unlawful discrimination, the burden shifts to the employer to "'articulate a legitimate, nondiscriminatory reason for the employer's action.'" Henry, supra, 204 N.J. at 331 (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005)). Since the employer carries only the burden of production at this juncture, "[i]t is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207, 216 (1981).

Then, the burden of production shifts back to the plaintiff to "'prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision.'" Henry, supra, 204 N.J. at 331 (quoting Zive, supra, 182 N.J. at 449). "A plaintiff may accomplish this by showing that (1) a discriminatory reason more likely motivated the employer than the employer's proffered legitimate reason, or (2) the defendant's proffered explanation is 'unworthy of credence.'" Maiorino v. Schering-Plough Corp., 302 N.J.Super. 323, 347 (App. Div.) (quoting Texas Dep't of Cmty. Affairs, supra, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217), certif. denied, 152 N.J. 189 (1997).

New Jersey courts have interpreted the proofs and burdens of persuasion for discrimination under the LAD in accord with federal anti-discrimination laws. See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 550 (1990); Clowes, supra, 109 N.J. at 595. Thus, federal law can be used for guidance in evaluating plaintiff's LAD age discrimination claim. Ibid.

Here, plaintiff was a member of a protected class because he was over forty at the time defendant terminated him. Young, supra, 385 N.J.Super. at 458. Plaintiff produced evidence showing he performed in his position until he was terminated. Therefore, plaintiff provided sufficient evidence to meet his burden on the second and third prongs. The quality of his performance "does not come into play on the . . . prima facie case." Zive, supra, 182 N.J. at 441. Further, plaintiff alleged that sufficiently younger attorneys performed his work after his termination. Plaintiff met his prima facie burden of proof.

The next query is whether defendant articulated a legitimate, non-discriminatory reason for plaintiff's termination. It is undisputed that defendant had ceased litigating nearly all of plaintiff's primary areas of expertise. In addition, on at least one major products liability case which plaintiff spent a significant amount of time, the client was dissatisfied with plaintiff's work product and retained other counsel. Some members of the firm did not believe plaintiff was well-regarded in products liability defense work. Accordingly, defendant satisfied its burden of proof. See Texas Dep't of Cmty. Affairs, supra, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 216.

The issue on appeal is whether the motion judge erred by finding that plaintiff did not present sufficient evidence to raise a jury issue as to whether the reasons given for his termination were a pretext for age discrimination. Plaintiff argues that defendant's asserted non-discriminatory reasons for termination were "unworthy of credence" because: (1) his performance was satisfactory, and the chart indicating his alleged shortcomings was "created to make the terminations appear justified;" (2) he was not weak in products liability defense work; (3) the firm had enough products liability work for him; and (4) the firm retained younger attorneys to perform his work.

Plaintiff has not established that defendant's non-discriminatory reasons for his termination were "unworthy of credence" because he does not dispute the primary reasons for his termination. Specifically, plaintiff does not dispute that defendant moved away from his primary areas of expertise and that the attorney who provided defendant with a significant amount of work in that practice area dramatically decreased plaintiff's assignments because that attorney's practice focus changed.

Notably, plaintiff does not dispute that a client was displeased with his performance on a major products liability case that constituted approximately half of his billable hours for fiscal year 2005-2006. Moreover, well before the September 2006 meeting, plaintiff's employment prospects were not favorable, as he himself acknowledged when he sought psychiatric treatment because he displeased a client and was no longer working much with the attorney in his practice area who gave him work.

None of the reasons for plaintiff's termination suggested any age animus. The fact that plaintiff disagreed with defendant's decision to terminate him does not create a viable issue of fact with respect to pretext. It is well-established that "an employer can legally discharge an employee without violating employment discrimination statutes 'for good reason, bad reason, or no reason at all, ' as long as there is no intentional discrimination." Maiorino, supra, 302 N.J.Super. at 345 (quoting Walker v. AT&T Technologies, 995 F.2d 846, 850 (8th Cir. 1993)). See also Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (stating that a "plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent"). Employers "are entitled to consider the long-term potential of employees when making business decisions." Young, supra, 385 N.J.Super. at 463. So "long as the decision is not based on unlawful . . . discrimination, 'the courts have no business telling [companies] . . . how to make personnel decisions, which may be objectively or subjectively based.'" Maiorino, supra, 302 N.J.Super. at 345-46 (quoting Walker, supra, 995 F.2d at 850).

Nor is it of consequence that after plaintiff's termination, defendant retained younger attorneys to perform his work. See EEOC v. MCI Int'l, Inc., 829 F.Supp. 1438, 1458 (D.N.J. 1993) ("A mere recitation by plaintiff of the fact that younger employees were retained does not begin to show pretext. . . .").

As evidence that there was no intentional discrimination in this case, plaintiff admitted that the committee which recommended his termination did not harbor any age animus towards him.

Since plaintiff does not dispute the primary reasons for his termination, nor offer any evidence that his termination was motivated because of his age, he has not met his burden of demonstrating that defendants' proffered legitimate, non-discriminatory reasons for his termination were pretextual.

B. Retaliation Claim

Plaintiff next contends the trial judge erred by directing the verdict for defendant on the retaliatory discharge claim. He alleges that his termination, which occurred in September 2007, was in retaliation for the December 2006 letter from plaintiff's counsel claiming age discrimination. We disagree.

We recognize, as did the trial judge, that plaintiff's LAD claim had been dismissed on summary judgment prior to trial. The trial judge directed the verdict for defendant because there was no "evidence on which th[e] jury could conclude that the sending of that letter in December of [20]06 hastened, accelerated, or in any way contributed to the plaintiff's departure from the firm." Moreover, the trial judge explained:

[B]etween the time of that correspondence in December of [20]06 until the day that the plaintiff was told it would be his last day at the firm[, ] there is no evidence that anybody said anything to him in any way, shape or form about the claim of age discrimination. The testimony was he continued to be paid, he continued to look for other work, and his focus was on finding another job. The Court finds a complete absence of any evidence on which a jury could decide that that letter from [plaintiff's counsel] in December of [20]06 in any way hastened the decision to, or hastened the implementation of the decision that plaintiff acknowledges was communicated to him in September of [20]06.

In addition, the judge noted that there was not one iota of evidence, in the absence of expert testimony, that would allow any of these jurors to reach a conclusion about how long it would have taken after his termination date, September 28, 2006, for plaintiff to complete his then-current assignments.

N.J.S.A. 10:5-12(d), the LAD's retaliation provision, prohibits retaliation against any person

because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

The protected activity was plaintiff's counsel's December 11, 2006 letter to defendant alleging age discrimination. Plaintiff was terminated on September 26, 2007. A gap of more than nine months between the protected activity and adverse employment action, without more, is insufficient as a matter of law to establish causation. See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) ("[A] gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment."), cert. denied, 553 U.S. 1004, 128 S.Ct. 2053, 170 L.Ed.2d 793 (2008); Harley v. McCoach, 928 F.Supp. 533, 542 (E.D. Pa. 1996) ("[O]ther courts generally hold that if at least four months pass after the protected action without employer reprisal, no inference of causation is created"). There is no evidence suggesting a pattern of antagonism after the December 2006 letter. Rather, plaintiff was paid his full base salary for the 2006-2007 fiscal year, despite billing only 782 hours.

Plaintiff claims he presented direct evidence of retaliation because the September 25, 2007 letter authored by defendant's counsel, informing him of his effective termination date, stated that the firm terminated him because of the "prior position" he had taken "relating to his employment and status at the firm." Plaintiff alleges the "prior position" was the age discrimination complaint. However, the firm's attorney provided unrefuted testimony that by "prior position, " he meant the position plaintiff had taken, that he had been terminated in 2006. Moreover, the trial record contained a letter from defendant's counsel dated July 27, 2007, much closer in time to the September 2007 letter, which defined "prior position" as the position "that [plaintiff] has taken that he has already been terminated." Plaintiff produced no direct evidence of retaliation.

Nevertheless, plaintiff claims he was not required to demonstrate how long he would have remained employed to recover emotional distress damages. However, plaintiff concedes his theory on the retaliatory discharge claim at trial was that the firm had not decided when it was going to terminate him as of September 28, 2006, and the December 11, 2006 letter "alleging age discrimination hastened his departure." Thus, as part of his prima facie burden, the only way plaintiff could have proven that the December 2006 letter accelerated his termination, was to first establish his expected duration of employment after the September 2006 meeting. Plaintiff failed to do that, as conceded by his counsel at trial, and therefore failed to establish the required elements of his prima facie case. Accordingly, we discern no error in the trial judge's directed verdict for defendant.

C. Conversion Claim

Plaintiff contests the order requiring him to return the referral fee. We find plaintiff's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Rule 1:39-6(d) states, in pertinent part, that "[a] certified attorney who receives a case referral from a lawyer who is not a partner in or associate of that attorney's law firm or law office may divide a fee for legal services with the referring attorney or the referring attorney's estate."

"The common law tort of conversion is defined as the 'intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.'" Bondi v. Citigroup, Inc., 423 N.J.Super. 377, 431 (App. Div. 2011) (quoting Chicago Title Ins. Co. v. Ellis, 409 N.J.Super. 444, 454 (App. Div.) (quoting Restatement (Second) of Torts § 222A(1) (1965)), certif. denied, 200 N.J. 506 (2009)), certif. denied, 210 N.J. 478 (2012).

Plaintiff was the agent of defendant acting within the scope of his employment when the agreement to pay the fee to defendant was reached. We agree with the motion judge, the fee belongs to defendant.


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